Mary Ann Raczka, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 9, 2005
01a54172 (E.E.O.C. Sep. 9, 2005)

01a54172

09-09-2005

Mary Ann Raczka, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Mary Ann Raczka v. United States Postal Service

01A54172

September 9, 2005

.

Mary Ann Raczka,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A54172

Agency No. 4B-140-0021-05

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated May 19, 2005, finding that it was in

compliance with the terms of the February 11, 2005 settlement agreement

into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �

1614.504(b); and 29 C.F.R. � 1614.405.

The settlement agreement provided, in pertinent part, that:

[Manager] will convene a meeting to discuss work and construction issues

and updates. This meeting will be held every two weeks at first and

more or less frequently thereafter as needed.

No contractual issues will be discussed. No personal or interpersonal

issues will be discussed. The focus of the meeting will be on business

decisions and their impact on the VMF department.

Time: 2:00 p.m. - 2:30 p.m. Attendance will be voluntary. Overtime will

be allowed at the discretion of the employees' supervisors.

Participants will include general office workers, both clerical and

general mechanics, and both shift supervisors.

Items for the agenda shall be submitted to the shift supervisors no

later than the day prior to the meeting.

By letters to the agency dated April 19, 2005 and May 9, 2005, complainant

alleged that the agency was in breach of the settlement agreement and

requested that the agency reinstate her EEO complaint. Specifically,

complainant alleged that the agency failed to schedule regular meetings

after the first three meetings and that Manager did not attend the

third meeting. She further alleged that the agreement was violated by

Manager's poor communication skills.

In its May 19, 2005 FAD, the agency concluded that the settlement

agreement had not been breached. The FAD noted that more than three

meetings were held and that the agreement did not address Manager's

communication skills or style.

EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement

agreement knowingly and voluntarily agreed to by the parties, reached at

any stage of the complaint process, shall be binding on both parties.

The Commission has held that a settlement agreement constitutes a

contract between the employee and the agency, to which ordinary rules

of contract construction apply. See Herrington v. Department of Defense,

EEOC Request No. 05960032 (December 9, 1996). The Commission has further

held that it is the intent of the parties as expressed in the contract,

not some unexpressed intention, that controls the contract's construction.

Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795

(August 23, 1990). In ascertaining the intent of the parties with regard

to the terms of a settlement agreement, the Commission has generally

relied on the plain meaning rule. See Hyon O v. United States Postal

Service, EEOC Request No. 05910787 (December 2, 1991). This rule states

that if the writing appears to be plain and unambiguous on its face,

its meaning must be determined from the four corners of the instrument

without resort to extrinsic evidence of any nature. See Montgomery

Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).

In the instant case, we find that the agency did not breach the February

11, 2005 settlement agreement. The record contains an affidavit from

Manager indicating that the first meeting was held on February 17, 2005,

and meetings were held thereafter on March 3, March 17, March 31, May 5,

May 25, June 9, and June 23. Manager indicated that no meetings were held

between March 31, 2005 and May 5, 2005 because there was a temporary lull

in construction, and there was nothing new to discuss. Manager also

indicated that he did not attend the March 31, 2005 meeting because

he was on vacation. Manager noted that the meetings were continuing

to be held and would continue as long as necessary. With respect to

Manager's communication skills, while the terms of the agreement require

Manager to schedule meetings, the agreement does not address Manager's

communication skills. If the complainant wanted the agreement to address

Manager's communication skills, she was free to negotiate with the agency

to include a provision addressing Manager's communication skills in the

settlement agreement. See Jenkins-Nye v. General Service Administration,

EEOC Appeal No. 01851903 (March 4, 1987).

Accordingly, the agency's decision finding no breach of the settlement

agreement is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as

the defendant in the complaint the person who is the official agency head

or department head, identifying that person by his or her full name and

official title. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 9, 2005

__________________

Date